DocketNumber： No. 15-277
Citation Numbers： 179 So. 3d 943, 15 La.App. 3 Cir. 277, 2015 La. App. LEXIS 2388, 2015 WL 7568565
Judges： Keaty, Pickett, Savoie
Filed Date： 11/25/2015
Status： Precedential
Modified Date： 10/19/2024
concurs and assigns ' reasons.
_JjI agree with the majority’s findings; however, I feel compelled to comment on the state of the law. As discussed in the majority opinion, there are three parts to the job availability test that an employer must prove to discharge its’ burden. It is the third prong of this test that gives me pause. In my view, Walgreens should be made to prove more than that there is “an actual position available for that particular job at the time that the claimant' received notification of the job’s existence.” Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840, p. 11- (La.7/1/97), 696 So.2d 551, 557. While the law is clear that actual job placement is not necessary, there should be a component of the test that includes whether the employee has a reasonable chance of placement in the position.
In the present case, the evidence shows that Mr. Clark was very proactive in his job search. He applied for over 100 jobs, most of which he found without the help of his vocational rehabilitation counselor, Jamie Primeaux. Ms. Primeaux. testified that Mr. Clark was a model client who went above and beyond to find a job. He tried very hard to become a member of the job force. Despite this, Mr. Clark did not receive one job offer.
Ms. Primeaux’s testimony regarding the current job market offers some insight. She testified that there is stiff competition from individuals who do not |2have injuries and do not need modifications. Therein lies the rub. Mr. Clark is competing with a slew of healthy, able-bodied individuals that have inundated the job market due to the downturn in the economy, and it is clearly hampering his efforts to be hired. The fact that Mr. Clark was injured during a weak economy is not his fault, and he should not be made to suffer for it.
To that end, an employer should be made to prove whether the employee has a reasonable chance of placement in the position for which he applied as part of the job availability test. This would allow the courts to consider evidence regarding the job market and fully examine the reasons an employed hasn’t received a job offer.